2nd Circuit Judge denied a Maui Lani developer’s request to dismiss a building height limit lawsuit brought by Kahului homeowners whose houses now adjoin 30 feet of fill dirt.
Judge won’t halt Fairways fill suit
reprinted courtesy Maui News 11/30/07
WAILUKU – Questioning former Mayor Alan Arakawa’s “administrative edict” to exempt Maui Lani developments from building height limits, 2nd Circuit Judge Joel August on Thursday denied a developer’s request to dismiss a lawsuit brought by Kahului homeowners whose houses now adjoin 30 feet of fill dirt.
“There is a real question about whether the mayor had any authority to determine that the height restrictions would not be enforced,” August said. “Certainly, here the developer was on notice in his various permits that final approval depended on compliance with the height limits.”
August said he had seen no documentation that the Maui Lani development’s Phase II project district approval, obtained in 1990, provided for houses to be built on fill to heights of 30 feet from the finished grade, as the law would have allowed at the time.
The following year, a new county law restricted residential building heights to 30 feet from the natural or finished grade – whichever is lower.
August also said he had no evidence that nearby residents were given notice about the amount of fill planned for the Maui Lani subdivisions.
The judge made the comments Thursday as he denied most of the request by developer VP&PK LLC and Maui County to dismiss the lawsuit brought by 18 owners of houses near the Fairways project.
August ruled that the lawsuit should include developer New Sand Hills LLC as a defendant, giving the plaintiffs 30 days to make the addition.
The lawsuit seeks to enforce current building height restrictions at the Fairways and New Sand Hills subdivisions in the Maui Lani development.
The lots in the New Sand Hills subdivision in Wailuku have been sold to individual owners who in some cases have built homes on the lots.
Site work is continuing on the 14-acre Fairways subdivision, which is along the Maui Lani Golf Course and between The Island at Maui Lani subdivision and the older homes along Palama Drive.
With thousands of tons of dirt trucked to the Fairways site to fill a gully, residents have raised concerns about the loss of views and runoff from heavy rains.
Residents also have complained about vibrations and damage to their homes from compacting work as well as dirt and dust from the construction site.
In asking that the case be dismissed, attorney Ron Ogomori, representing VP&PK LLC and contractor KCOM Corp., said the issue in the case was “identical” to an earlier lawsuit brought by different area residents. That lawsuit was settled last year.
But August said the only court finding in the 2006 case, which had been before 2nd Circuit Judge Joseph Cardoza, was that the building height ordinance “has since 1990 been historically and consistently interpreted by the county” to measure building heights in the Maui Lani project district from the finished grade.
August said the court didn’t rule that that interpretation was valid.
“Grading permits obtained by the developer specifically advised them there were zoning restrictions on building heights,” he said. “The permits warn the owners and developers that placing fill on their lot would reduce the allowable height to less than finished grade.”
In December 2004, then-county Planning Director Mike Foley rescinded the recommendation for Maui Lani subdivision approval based on noncompliance with the building height law.
But after a meeting that month including former Mayor Arakawa, other county officials and developers, Arakawa issued his “administrative edict, which essentially reversed the decision of the Planning Department and permitted the Maui Lani projects to proceed,” August said.
During an earlier court hearing, Arakawa testified that officials decided to allow all projects that had obtained Phase II project district approval to proceed under the old building height law. Arakawa said the new building height law wasn’t being enforced, even though more than a decade had passed since it was enacted by the Maui County Council.
August said Thursday that the mayor “is not charged with enforcing zoning ordinances.”
“The central question is what authority did the mayor or Planning Department have to nullify the unambiguous language of the 1991 ordinance and its supremacy clause,” August said. “That is a serious question in this case.”
Deputy Corporation Counsel Madelyn D’Enbeau said most of the residents in the lawsuit were notified when Maui Lani was seeking its Phase II project district approval.
“This was a well-publicized development,” D’Enbeau said. “At that time, the rights of people to intervene would create for them an opportunity to have a contested case.
“If they had concerns about what was going to happen . . that was the time for them to intervene.”
But August said the 1990 Maui Lani Phase II project district approval, including a report by then-Planning Director Chris Hart, didn’t indicate that the project would include raising elevations more than 30 feet to levels above rooftops of nearby houses.
Part of Hart’s report, included in documents submitted by the county, says: “Physical and visual linkages to the natural setting are critical.”
“Somebody reading that back in 1990 – if they were a reasonable person – would certainly think that if physical and visual linkages to the natural setting are critical, somebody wouldn’t necessarily be putting 30 feet of fill in there,” August said.
He said another portion of the report described “tropical and colorful landscape buffer plantings” to create buffer zones that “are intended to both visually screen and soften adjacent areas.”
“I don’t think that gives anybody an indication that somebody’s going to look up from their house and see a 30-foot berm and retaining wall,” August said. “There’s a real question about what notice anybody would have been given about what eventually has occurred here.”
August said the Phase II approval covered uses of the land and the number of houses to be built but not the building height law then in effect.
“Significantly, those documents and all the plans that were submitted by the developer make absolutely no mention of any grading or fill plan, none at all,” August said. “The approval that was given was conditioned on adherence to building standards when the development actually commenced.
“There is no reference in the record that the court has seen yet that the building standards in place in 1990 would be grandfathered in 12 years hence. There was no grandfathering in of the prior standard.”
Noting that the Phase II approval was obtained by Maui Lani Partners, August said if the original developer’s rights were transferred to current developers, “there had to be prior written permission of the Planning Commission.”
“It’s possible it exists, but the court has not seen it yet,” August said.
Attorney Lance Collins, representing residents, said a Dec. 18 court hearing is scheduled on residents’ request for partial summary judgment on the building height issue.
Lila
Fujimoto can be reached at lfujimoto@mauinews.com
reprinted courtesy Maui News 11/30/07
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